Facts
The case concerns a man named W., who on August 5, 1977 drove through Räterschen at excessive speed and was detected by a radar system. During the following night, W. drove to Räterschen again together with H. to prevent the evaluation of the radar measurement. They smashed the radar device's window, poured gasoline into it and set it on fire, causing a total damage of around 40,000 Swiss francs.
W. was charged with a serious traffic violation and malicious damage to property. The High Court subsumed the damage to property under Art. 145 para. 2 of the Swiss Criminal Code, as it assumed that W. had acted out of malicious intent. W. then filed a nullity appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the qualified offense of damage to property under Art. 145 para. 2 of the Swiss Criminal Code is fulfilled if the perpetrator has caused substantial damage out of malicious intent. The malicious intent must be deeply rooted in the perpetrator's personality and decisively shape their fundamental attitude.
In the present case, the Federal Supreme Court does not see these requirements as fulfilled. While the purpose of the act - preventing punishment and driver's license revocation - cannot excuse the damage to…